Judges, 'Testilying,' and the Constitution

48 Pages Posted: 8 Aug 2017

See all articles by Morgan Cloud

Morgan Cloud

Emory University School of Law

Date Written: 1996


U.S. courts have turned increasingly to so-called objective tests to resolve many Fourth Amendment issues. One of the most flawed of these tests is the "could have" test used to judge the constitutionality of traffic stops. This test is defective precisely because it forecloses consideration of the motivations for searches and seizures. As a result, it offers inadequate protection for the privacy and liberty rights preserved by the Fourth Amendment.

This "could have" test even can provide police officers with incentives to lie about their reasons for conducting searches and seizures. If government conduct is. legitimated whenever the facts permit a judge to conclude that a proper motivation could have existed, then in some number of cases acts generated by improper motives will be approved despite the officer's subjective intention to circumvent legal rules. Even if the officer intended to violate the Fourth Amendment, his conduct will receive judicial approval if any plausible justification can be constructed, after the fact, and regardless of the officer's actual subjective fault.

The courts should abandon the flawed "could have" test. In its place courts should employ a two-part test that examines both the officer's subjective motive and the objective reasonableness of the search and seizure. Federal and state courts have used such two-part tests to decide whether the facts known to police officers justify searches and seizures and whether the officers' testimony about the intrusions were truthful. This analysis became more important after the Warren Court's decision in Mapp v. Ohio imposing the Fourth Amendment exclusionary rule upon the states. In the years following the decision, it became apparent that some police officers responded to Mapp by offering testimony that described constitutional searches and seizures regardless of the actual facts of the encounters between the police and civilians.

This Article begins with a discussion of the unpleasant topic of police perjury, which occurs most frequently in the context of search and seizure testimony. It then examines the different tests courts have used when deciding whether to accept police officers' explanations of why they conducted warrantless searches and seizures. This discussion explains why the "would have" test is the superior of the two common "objective" tests because it indirectly addresses the issue of subjective purpose. It also explains why both "objective" tests underestimate the significance of the investigating officers' subjective motives. Ultimately, the Article concludes that judges should abandon the recent attempt to rely upon purely objective tests when interpreting the Fourth Amendment.

Suggested Citation

Cloud, Morgan, Judges, 'Testilying,' and the Constitution (1996). Southern California Law Review, Vol. 69, No. 1341, 1996. Available at SSRN: https://ssrn.com/abstract=3014416

Morgan Cloud (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

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